UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

v. 

AUSTIN RAY, 

 Defendant - Appellant. 

No. 21-1376 

(D.C. Nos. 1:20-CV-00329-MSK & 

1:14-CR-00147-MSK-2) 

(D. Colo.) 

_________________________________ 

ORDER DENYING CERTIFICATE OF APPEALABILITY*

_________________________________ 

Before HARTZ, BALDOCK, and McHUGH, Circuit Judges. 

_________________________________ 

Austin Ray, appearing pro se, seeks a certificate of appealability (“COA”) to 

appeal the district court’s denial of his motion to vacate, set aside, or correct his sentence 

pursuant to 28 U.S.C. § 2255. 1 We deny a COA because Mr. Ray fails to show the denial 

*

 This order is not binding precedent except under the doctrines of law of the case, 

res judicata, and collateral estoppel. It may be cited, however, for its persuasive value 

consistent with Federal Rule of Appellate Procedure 32.1 and Tenth Circuit Rule 32.1. 

1

 At the time Mr. Ray filed the underlying motion and initiated this proceeding, he 

was a federal prisoner at FPC Englewood. It appears Mr. Ray was released from custody 

on January 20, 2022, however. See Austin Ray No: 40401-013, Federal Bureau of 

Prisons: Inmate Locator, https://www.bop.gov/inmateloc (last visited May 16, 2022). 

Regardless, because Mr. Ray was a federal prisoner when he filed his § 2255 motion, we 

may consider his application for a COA. See United States v. Bustillos, 31 F.3d 931, 933 

(10th Cir. 1994) (the petitioner must be “‘in custody’ at the time of filing his writ of 

habeas corpus,” including motions under 28 U.S.C. § 2255 (emphasis omitted)); see also 

United States v. Cervini, 379 F.3d 987, 989 n.1 (10th Cir. 2004) (section 2255 movant 

FILED 

United States Court of Appeals 

Tenth Circuit 

June 8, 2022

Christopher M. Wolpert 

Clerk of Court

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of a constitutional right, and we also deny Mr. Ray leave to proceed in forma pauperis 

(“IFP”). 

I. BACKGROUND 

A jury convicted Mr. Ray, who primarily represented himself at trial,2

 of one 

count of conspiracy to defraud the United States, five counts of aiding in the preparation 

of a false tax return, and two counts of submitting a false tax return. Mr. Ray was 

sentenced to 120 months’ imprisonment and a term of supervised release. This court 

affirmed his conviction. United States v. Ray, 899 F.3d 852 (10th Cir. 2018), cert. denied, 

139 S. Ct. 1206 (2019). 

remains “in custody” for purposes of eligibility to seek relief while serving term of 

supervised release). 

2

 As the district court explained: 

Mr. Ray was represented by the Federal Public Defender from his 

Indictment in April 2014 through November 2014, when the Public 

Defender moved [] to withdraw due to a breakdown in communications 

with Mr. Ray. The [c]ourt promptly appointed [] a CJA attorney, 

Mr. Viorst, to represent Mr. Ray. By January 2015, Mr. Ray moved [] to 

dismiss Mr. Viorst and proceed pro se. The [c]ourt granted [] that motion in 

March 2015, appointing Mr. Viorst to remain available as advisory and 

standby counsel. Mr. Ray proceeded to file numerous motions on his own 

behalf on a wide array of subjects and continued to represent himself up to 

the third day of trial. On that day, Mr. Ray requested [] that Mr. Viorst 

resume his representation, and Mr. Viorst promptly resumed Mr. Ray’s 

representation through the end of trial and sentencing. 

ROA Vol. I at 281 n.2. It appears the trial continued for two to three more days after 

Mr. Viorst resumed representation. 

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Mr. Ray then filed a § 2255 motion asserting the following grounds for relief: 

(1) the Internal Revenue Service (“IRS”) illegally performed electronic surveillance at his 

tax business and evidence obtained from that surveillance was used to obtain a search 

warrant; (2) the Government failed to disclose information concerning the wiretaps at his 

business; (3) he was denied an opportunity to prepare a defense, specifically he was 

denied the right to an expert witness or to review discovery and received ineffective 

assistance of counsel; and (4) he was prevented from challenging the IRS calculations for 

loss for purposes of restitution because the district court denied his request to retain an 

expert. The district court denied the motion and denied a COA, explaining Mr. Ray failed 

to sustain the merits of his claims because they were both factually insufficient and 

otherwise meritless. Mr. Ray now seeks a COA to appeal the district court’s order. 

In his application, Mr. Ray raises only the following issues: (1) ineffective 

assistance of counsel and (2) denial of due process because he was unable to have an 

expert witness or review discovery and his advisory counsel improperly interfered during 

trial. We therefore consider only these issues here. See United States v. McIntosh, 723 F. 

App’x 613, 615 (10th Cir. 2018) (unpublished) (declining to consider arguments raised in 

a § 2255 motion when the appellant made “no substantive arguments concerning [those] 

rulings” in his COA application and opening brief); Bronson v. Swensen, 500 F.3d 1099, 

1104 (10th Cir. 2007) (“[W]e routinely have declined to consider arguments that are not 

raised, or are inadequately presented, in an appellant’s opening brief.”). 

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II. DISCUSSION 

Mr. Ray must obtain a COA to pursue an appeal. United States v. Springer, 875 

F.3d 968, 972 (10th Cir. 2017) (“Where required, a COA is a prerequisite to this court’s 

exercise of jurisdiction, and 28 U.S.C. § 2253(c)(1)(B) plainly requires petitioners to 

obtain a COA to appeal any ‘final order in a proceeding under section 2255.’”). We 

liberally construe Mr. Ray’s pro se opening brief and application for a COA. See Hall v. 

Bellmon, 935 F.2d 1106, 1110 n.3 (10th Cir. 1994). To obtain a COA, Mr. Ray must 

make “a substantial showing of the denial of a constitutional right.” 28 U.S.C. 

§ 2253(c)(2). Specifically, Mr. Ray must show “that reasonable jurists could debate 

whether (or, for that matter, agree that) the petition should have been resolved in a 

different manner or that the issues presented were adequate to deserve encouragement to 

proceed further.” United States v. Christensen, 456 F.3d 1205, 1206 (10th Cir. 2006) 

(quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). Because Mr. Ray fails to make 

such a showing, we deny him a COA. 

A. Ineffective Assistance of Counsel 

 To establish an ineffective assistance of counsel claim, Mr. Ray must show 

deficient performance and prejudice. Strickland v. Washington, 466 U.S. 668, 687 (1984). 

Mr. Ray represented himself for much of the pretrial process up until the third day of 

trial, at which time he requested representation from his advisory counsel. Of course, “a 

defendant who exercises his right to appear pro se ‘cannot thereafter complain that the 

quality of his own defense amounted to a denial of effective assistance of counsel.’” 

McKaskle v. Wiggins, 465 U.S. 168, 177 n.8 (1984) (quoting Faretta v. California, 422 

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U.S. 806, 834 n.46 (1975)). Mr. Ray makes three arguments in support of his ineffective 

assistance of counsel claim: (1) prior to trial Mr. Ray’s advisory counsel “complained in 

open court” that he “wasn’t prepared to go to trial” and did not ask for a continuance; 

(2) his advisory counsel “refused to use the expert at trial to refute the AUSA’s theory of 

how deductions were allowed, and also the wrong restitution that was imposed”; and (3) 

advisory counsel “allowed government witness testimony to go unchallenged.” Appellant 

Br. at 6–7. 

While in his COA application, Mr. Ray is somewhat more detailed in making his 

ineffective assistance of counsel argument, in his § 2255 motion, he merely stated there 

was “ineffective assistance of counsel during appointments, hybrid counsel at trial, and 

advisory/standby counsel.” ROA Vol. I at 261. Only Mr. Ray’s argument regarding the 

lack of an expert witness can be found anywhere in his § 2255 motion. In a section of the 

§ 2255 motion titled “Restitution,” Mr. Ray argued he “was not able to challenge the IRS 

calculations because he was denied his right to have an expert at trial.” ROA Vol. I at 

258. This argument appears in another form in his COA application under his ineffective 

assistance of counsel claim, in which Mr. Ray argues his advisory counsel “refused to use 

the expert at trial to refute the AUSA’s theory of how deductions were allowed, and also 

the wrong restitution that was imposed.” Appellant Br. at 7. Because we must liberally 

construe Mr. Ray’s opening brief and application for a COA, we treat Mr. Ray’s 

argument regarding the lack of an expert as preserved and address it on its merits. But 

where Mr. Ray did not present either of his other two ineffective assistance of counsel 

arguments to the district court in his § 2255 motion, we do not address them here. United 

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States v. Mills, 514 F. App’x 769, 770 (10th Cir. 2013) (unpublished) (concluding an 

argument was not preserved because it was not raised before the district court in the 

original § 2255 motion); Mann v. United States, 204 F.3d 1012, 1017 (10th Cir. 2000) 

(stating “arguments which are not raised below will not ordinarily be considered on 

appeal” and may only be considered “in the most unusual circumstances” not present 

here). 

 Mr. Ray argues that although his advisory counsel retained an expert pretrial, he 

refused to use that expert “to refute the [Government’s] theory of how deductions were 

allowed, and also the wrong restitution that was imposed.” Appellant Br. at 7. Mr. Ray 

cannot challenge a restitution award via a § 2255 motion because “he is not ‘claiming the 

right to be released’ from custody based on his claim.” United States v. Satterfield, 218 F. 

App’x 794, 795 (10th Cir. 2007) (unpublished) (quoting United States v. Bernard, 351 

F.3d 360, 361 (8th Cir. 2003) (joining the “majority of circuits in holding that a federal 

prisoner cannot challenge the restitution portion of his sentence using 28 U.S.C. § 2255” 

and citing case law from the Second, Ninth, Fifth, Eleventh, Seventh, and First 

Circuits))see also 28 U.S.C. § 2255 (“claiming the right to be released”). Because any 

modification of the restitution order would not reduce Mr. Ray’s term of imprisonment or 

supervised release, he cannot challenge the restitution award via a § 2255 motion. 

Mr. Ray’s argument that his counsel did not use an expert to refute the 

Government’s theory at trial is equally unpersuasive because Mr. Ray controlled the 

course of much of his trial as his own representative. And Mr. Ray fails to make any 

argument that “the decision reached would reasonably likely have been different absent 

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the errors,” which he is “affirmatively” required to establish. Strickland, 466 U.S. at 693, 

696. 

 Even construing Mr. Ray’s application liberally, he has not established ineffective 

assistance of counsel. He represented himself throughout the majority of his trial, and 

when he was represented by counsel, there is nothing in Mr. Ray’s opening brief or the 

record to support a conclusion that his counsel provided deficient performance. Further, 

Mr. Ray has made no attempt to establish prejudice caused by the allegedly defective 

performance. For these reasons, Mr. Ray fails to make “a substantial showing of the 

denial of a constitutional right,” as to his ineffective assistance of counsel claim. 

28 U.S.C. § 2253(c)(2). 

B. Denial of Due Process 

Mr. Ray also argues he was denied due process because (1) he “was not allowed 

access to [the] previously appointed expert witness or funds to obtain expert witness after 

proceeding pro[] se”; (2) the district court “never allowed [Mr. Ray] to review discovery 

prior to trial, after pro se appointment”; and (3) his advisory counsel “chose to interrupt 

[Mr. Ray]” and interfered with Mr. Ray’s ability to represent himself. Appellant Br. at 7–

8. None of these arguments suffice to meet the COA standard. 

It appears Mr. Ray repeatedly failed to follow the procedures necessary to obtain 

an expert, as the district court explained, 

prior to trial, Mr. Ray made several broad requests for authorization from 

the [c]ourt for funds to retain a variety of experts. . .The [c]ourt repeatedly 

advised Mr. Ray that he needed to make specific showings as to the 

identities of the specialists, whose services he sought to retain. . . among 

other things. 

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ROA Vol. 1 at 285 (internal quotation marks omitted). Mr. Ray failed to provide the 

district court with the requested information required for authorization of an expert, and 

as a result of his own failure, he did not have access to an expert witness. Mr. Ray does 

not address the district court’s explanation. Mr. Ray instead primarily argues he “was not 

allowed access to [the] previously appointed expert witness,” “appointed on motion filed 

by [advisory counsel].”3

 Appellant Br. at 7–8. He did not make this argument before the 

district court, and therefore we do not address it here. Mills, 514 F. App’x at 770; Mann, 

204 F.3d at 1017. Given Mr. Ray’s repeated failure to follow the district court’s 

instructions to obtain an expert witness, his conclusory statement that he “was not 

allowed” access to an expert, is insufficient to support his argument. See Green v. 

Dorrell, 969 F.2d 915, 917 (10th Cir. 1992) (pro se litigants “must follow the same rules 

of procedure that govern other litigants”). 

 As for Mr. Ray’s argument that the district court “never allowed [him] to review 

discovery prior to trial,” Appellant Br. at 8, he fails to address the district court’s 

explanation that it “directed that Mr. Ray be transported to the courthouse on a regular 

basis to review the documentation here at the courthouse,” and “authorized seven trips, 

all day, to the courthouse over the next 20 days to facilitate Mr. Ray’s review of the 

information,” with the possibility for additional trips upon request. ROA Vol. 1 at 286 

(internal quotation marks omitted). The district court explained it took this step to resolve 

administrative difficulties with the discovery review while Mr. Ray was incarcerated. 

3

 The record does not support Mr. Ray’s claim that his advisory counsel had 

obtained an expert. ROA Vol. I at 4–38. 

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Mr. Ray did not request additional trips and, following at least one courthouse visit to 

review the discovery, his advisory counsel moved to have future review sessions 

conducted at the jail instead, which the court granted to further increase discovery access. 

Mr. Ray does not address these facts in his argument but instead repeats only his 

conclusory statement that he was not allowed access to the discovery. Without more, we 

cannot say Mr. Ray was denied discovery—in fact, the record indicates the district court 

took significant steps to ensure his access. 

 Finally, Mr. Ray argues his advisory counsel interfered with his right to represent 

himself by interrupting him during trial. Again, Mr. Ray did not make this argument 

before the district court and it is therefore not preserved. Regardless, the argument is 

meritless. To be sure, Mr. Ray is correct that he has the right to self-representation in 

certain circumstances, see Faretta, 422 U.S. 806, and that right may be “undermined by 

unsolicited and excessively intrusive participation by standby counsel,” McKaskle, 465 

U.S. at 177. A review of the record, however, reveals that any interaction between 

Mr. Ray and his advisory counsel did not “allow[] counsel to make or substantially 

interfere with any significant tactical decisions, or to control the questioning of witnesses, 

or to speak instead of the defendant on any matter of importance,” or “destroy the jury’s 

perception that [Mr. Ray was] representing himself.” Id. at 178 (emphasis omitted). In 

fact, Mr. Ray asked for his advisory counsel’s full participation on day three of the trial. 

For these reasons, all three of Mr. Ray’s due process arguments are insufficient to make 

“a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). 

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III. CONCLUSION 

For the foregoing reasons, we DENY a COA and DISMISS this matter.4

 

Entered for the Court 

Carolyn B. McHugh 

Circuit Judge 

4

 Mr. Ray seeks leave to proceed in forma pauperis (“IFP”). The district court did 

not address this issue. Mr. Ray renewed his motion with this court and represented that he 

remained incarcerated even after his apparent release. Because Mr. Ray falsely 

represented he remained incarcerated in his renewed motion for IFP, we deny the motion. 

Regardless, because Mr. Ray’s arguments are severely undeveloped and he cannot 

demonstrate “the existence of a reasoned, nonfrivolous argument on the law and facts in 

support of the issues raised on appeal,” we would deny him leave to proceed IFP even if 

he did remain incarcerated. Watkins v. Leyba, 543 F.3d 624, 627 (10th Cir. 2008). 

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